An internal review of the US Department of Homeland Security’s procedures regarding the suspicionless search-and-seizure of phones and laptops near the nation’s border has reaffirmed the agency’s ability to bypass Fourth Amendment-protected rights [.pdf].
In a two page executive summary published quietly last month to the official DHS website, the agency explains that a civil rights and civil liberties impact assessment of the office’s little-known power to collect personal electronics near international crossings has passed an auditor’s interpretation of what does and doesn’t violate the US Constitution.
Since 2009, the DHS has been legally permitted to seize and review the contents of personal electronic devices, including mobile phones, portable computers and data discs, even without being able to cite any reasonable suspicion that those articles were involved in a crime.
When the initiative was introduced in August 2009 by DHS Secretary Janet Napolitano, she defended the policy change. “Keeping Americans safe in an increasingly digital world depends on our ability to lawfully screen materials entering the United States,” the secretary said, adding, “The new directives announced today strike the balance between respecting the civil liberties and privacy of all travelers while ensuring DHS can take the lawful actions necessary to secure our borders.”
In that Aug. 09 announcement, Sec. Napolitano ensured the American public that they had nothing to worry about and that an impact assessment would be conducted within 120 days to eliminate any fears. More than two years later, however, the DHS-led study has only now been released in part, and its findings do little to alleviate the concerns of civil liberty advocates who have held their breath since the early days of the Obama administration, waiting anxiously to hear about the legality of a directive that applies to both Customs and Border Protectionagents and officers with the Immigration and Customs Enforcement working under the DHS.
“We conclude that CBP’s and ICE’s current border search policies comply with the Fourth Amendment,” reads the assessment, written by Tamara Kessler of the department’s Office for Civil Rights and Civil Liberties. “We also conclude that imposing a requirement that officers have reasonable suspicion in order to conduct a border search of an electronic device would be operationally harmful without concomitant civil rights/civil liberties benefits,” she adds.
Elsewhere in her report, Kessler dismisses concerns that legalized searches that require Americans to submit their electronic devices without reason would scare citizens from exercising their ability to speak and act freely.
“Some critics argue that a heightened level of suspicion should be required before officers search laptop computers in order to avoid chilling First Amendment rights. However, we conclude that the laptop border searches allowed under the ICE and CBP Directives do not violate travelers’ First Amendment rights,” Tessler insists.
David Kravets, a reporter for Wired’s Danger Room, writes of the review, “The memo highlights the friction between today’s reality that electronic devices have become virtual extensions of ourselves housing everything from e-mail to instant-message chats to photos and our papers and effects — juxtaposed against the government’s stated quest for national security.”
Commenting on Wired’s report, American Civil Liberties Union staff attorney Catherine Crump voices concern over how DHS agents can essentially bypass the protections of the Fourth Amendment of the US Constitution, which prohibits unreasonable search-and-seizure. With few exceptions, the government is not permitted to search the belongings of a person without a reasonable suspicion of a crime. Near the nation’s borders, though, that requirement is removed entirely.
“There should be a reasonable, articulate reason why the search of our electronic devices could lead to evidence of a crime,” Crump tells Wired. “That’s a low threshold.”
Katie Haas of the ACLU’s Human Rights Program adds in a blog post this week, “the reality is that
allowing government agents to search through all of a traveler’s data without reasonable suspicion is completely incompatible with our fundamental rights. Those rights, she says, are “implicated when the government can rummage through our computers and cell phones for no reason other than that we happen to have traveled abroad.”
“Suspicionless searches also open the door to profiling based on perceived or actual race, ethnicity, or religion,”Haas adds, “And our First Amendment rights to free speech and free association are inhibited when agents at the border can target us for searches based on our exercise of those rights.”
In response to the stripped-down executive summary posted by DHS, the ACLU’s main office has filed a Freedom of Information Act (FOIA) request with the government in hopes of obtaining more information on when and why Americans might lose their Fourth Amendment-protected rights. The ACLU seeks the assessment in its entirety and all data, analyses and records gathered during the course of preparing the report.
Where exactly the government can seize personal items without reason is something that has already been determined, though. Last March, the US Supreme Court upheld an earlier ruling that legally permitted the use of suspicionless roadblocks not necessarily close to the country’s borders. Back in 2006, the ACLU determined that roughly two-thirds of the entire US population lives within 100 miles of the country’s border, making approximately 200 million Americans in places like Buffalo, Boston, Los Angeles and Seattle subject to warrantless and suspicionless searches.
"It is a classic example of law enforcement powers expanding far beyond their proper boundaries – in this case, literally,” ACLU’s Caroline Fredrickson told Wired for an earlier report.
Sec. Napolitano and the DHS have been sued at least once over allegations that the seizure of personal electronic belonging to a US citizen near an international border violated the Constitution of the country. David House, a founding member of the Bradley Manning Support Network, says his laptop and other devices were confiscated without reason while returning to the US from Mexico in November 2010. According to legal filings, House was grilled about his association with Manning, an accused Army whistleblower arrested six months earlier, and WikiLeaks, the website Manning is alleged to have supplied with hundreds of thousands of diplomatic cables.
